Plaintiff
Madison-Rae Jordan filed this case individually and also as
next friend of her son D.M., a minor (Plaintiff). She alleges
a medical malpractice case against defendant United States of
America based on the negligence of physicians at the Naval
Hospital Camp Pendleton and the Naval Medical Center San
Diego. In this discovery dispute the parties present a narrow
issue for determination: whether a protective order should
issue regarding the electronic Excel file of the USA's
economic expert's report regarding the present value of
future damages.

For the
following reasons, the court GRANTS Defendant's motion
for protective order of the Excel file.

Relevant
Background.

Plaintiff
deposed Defendant's economic expert, Heather Xitco, a
forensic accountant and owner of Dolan Xitco Consulting
Group. Xitco Decl. ¶ 1. Ms. Xitco used an Excel
spreadsheet to formulate and determine the present value loss
figures in this case. Xitco Decl. ¶ 3. During her
deposition Ms. Xitco explained that she determined the
present value of various components of the parties' life
care plans by using the present value formula function in
Excel. Jt. Mtn., p.2. Then she input the cost of the item,
the time frame the item required, and the net discount rate.
Id.

The
parties agree that Defendant will produce the electronic
Excel file after certain metadata is removed. Defendant seeks
a protective order over only the electronic file, based on
its expert's belief that the electronic file contains
proprietary components. Specifically, Ms. Xitco asserts that
the “unique attributes [of the report]…were
created solely for my firms [sic] benefit and
…brand: font style, font size, print layout,
formatting, schedule organization, schedule linking.”
Xitco Decl. ¶ 4. She believes that producing an
electronic copy of this information could cause economic harm
to her business because “[p]roviding the information
would allow a competitor to copy our ‘brand' and
would be detrimental to our practice.” Xitco Decl.
¶ 5.

There
is no dispute that a hard copy of the file or a hard copy of
the list of formulas used for the calculations can be
publicly available and not subject to a protective order.
See Ex. 3. The only issue for the court to decide is
whether the public-whether it be a reporter or future or
collateral litigants-has a right to an electronic copy of the
expert's Excel file. To answer that question, the court
must determine that either Plaintiff or her counsel has
standing to assert that right on behalf of the public, and
that a hard copy of the Excel file is insufficient to satisfy
any right that may exist.

Discussion.

1.
Legal Standard Regarding Protective Orders.

A court
may issue a protective order “requiring that a trade
secret or other confidential research, development, or
commercial information not be revealed or be revealed only in
a specified way[.]” Fed.R.Civ.P. 26(c)(1)(G). The
burden of proof for a protective order is on the moving party
to make a clear showing of particular and specific need for
the protective order. See Blankenship v. Hearst
Corp., 519 F.2d 418, 429 (9th Cir. 1975).[1] Here, Defendant
asserts that its expert's Excel file contains unique
attributes that comprise part of her company's brand, and
that the concern is a competitor could easily copy the Excel
file and the brand, which would cause economic harm to her
business. See Xitco Declaration.

The
court finds that this is an adequate assertion of a trade
secret or other confidential research, development, or
commercial information for the purpose of discovery. Absent
one of Plaintiff's competing concerns addressed below,
the electronic file should be produced subject to a
protective order.

2.
Access to Judicial Records.

Plaintiff
argues that the presumption of a public right to access and
inspect judicial records is paramount here. In support, she
cites to a Ninth Circuit case that says the “right is
justified by the interest of citizens in keeping a watchful
eye on the workings of public agencies.” Kamakana
v. City and County of Honolulu, 447 F.3d 1172, 1178 (9th
Cir. 2006) (internal quotations omitted). The case goes on to
identify two categories of documents to which the public
presumption does not apply: “grand jury transcripts and
warrant materials in the midst of a pre-indictment
investigation.” Id.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Here,
Plaintiff asserts a public interest over the electronic
record of an expert&#39;s private business information. The
business information at stake-namely, the expert&#39;s
brand-is not an official record that displays the workings of
a government agency. While Kamakana affirmed the
unsealing of Honolulu's city and county police records
that were sealed in an underlying whistleblower case, it
noted that the public's ...

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